TaxTMI 
TaxTMI 
2025 (7) TMI 936
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.... in WP 10909/2023 and R. No. 4 in WP 10910/2023 and R. No. 3 in WP 10887/2023 and WP 10888/2023. For the Respondent: Mr. Zerick Dastur, a/w Ms. Archana Uppulliri i/by M/s. Zerick Dastur Advocates, for R.No. 5 & 6. For the Respondent: Mr. Pesi Modi, Senior Advocate, a/w Ms. Kalpana Desai a/w Mr. Ritvik Kulkarn a/w Ms. Kanika Sharma, i/by Khaitan & Co. For R.No.2 in WP 10887/2023 and WP 10888/2023 and R.No.3 in WP 10910/2023. JUDGMENT: (PER M. S. SONAK, J.) 1. Heard learned Counsel for the parties. 2. Having regard to this Court's order dated 14 March 2023, we issue Rule in each of these Petitions. With the consent of and at the request of the learned Counsel for the parties, the Rule in each of the Petitions is made returnable immediately. 3. All these Petitions challenge the Central Information Commission's (CIC) order dated 27 December 2022 partly allowing Mr Agarwal's application dated 18 June 2021 seeking some information from the Chief Public Information Officer (CPIO), Securities and Exchange Board of India (SEBI) under the Right to Information Act, 2005 (RTI). 4. The SEBI has instituted Writ Petition No. 10909 of 2023 and Writ Petition No. 10910 of 202....
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....that the documents pertaining to grant of approval for appointment of PIDs was personal information of the applicants. However, the CPIO was directed to provide a list of selected and rejected candidates, invoking the severability principle of Section 10 of the RTI Act and ensure the personal information and sensitivie information is redacted and masked. [This is challenged by the Mr Agarwal as well as SEBI] Query No. 4: Copies of annual inspection-reports made by SEBI in respect of BSE from the year 2017-18 till 2019-20 if not available on SEBI website. [see: Pg. 29] Applying the exemption under Section 8(1)(d), full inspection reports were not provided and only concluding comments/final findings (year-wise) of annual inspections concluded during the period mentioned in queries no. 4 and 5 was provided in public interest. [This is challenged by the Mr Agarwal as well as SEBI] Note 1: In Reserve Bank of India vs. Jayantilal N. Mistry (2016) 3 SCC 525, the Hon'ble Supreme Court, in relation to RBI and banks, held that reports of inspections, statements of the banks, information related to the business obtained by RBI are not under the pretext of confidence or....
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....ormation would cause an unwarranted invasion of individual privacy, and there was no larger public interest justifying its disclosure. 10. Mr Bhatt submitted that much of the information applied for by Mr Agarwal pertains to third parties like BSE, NSE and other stock exchanges. The CIC, in making the impugned order, had completely ignored the provisions of Section 11 of the RTI, and for this reason, the impugned order is also vulnerable. 11. Mr Bhatt submitted that Mr Agarwal had raised no specific queries or had sought no specific information. The entire exercise, he submitted, was more like a fishing expedition. He submitted that while an RTI applicant may not be required to disclose their motives for seeking the information, it was still highly challenging for SEBI to deal with such applications bereft of any particulars. He submitted that by suggesting that the declined information be furnished to Mr Agarwal, a disproportionate burden was being imposed upon the SEBI. 12. Mr Bhatt refereed to certain decisions and made his submissions to distinguish the decision of the Hon'ble Supreme Court in the case of Reserve Bank of India Vs Jayantilal N Mistry 2016 3 SCC 525 reli....
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....for Mr Agarwal, clinically analysed the SEBI's response to the RTI application, the orders made by the first and second appellate authorities and the impugned order made by the CIC. He submitted that SEBI and others are now attempting to raise grounds other than those on which their initial arbitrary rejection was based. He submitted that this was clearly impermissible, and the parties should not be allowed to add new grounds to sustain the otherwise arbitrary rejection of the information sought by Mr Agarwal. 18. Mr Venugopal submitted that no information sought for by Mr Agarwal was received by SEBI in its fiduciary capacity. In any event, there was a larger public interest in transparency in the functioning of the SEBI and the stock exchanges involved. He submitted that the principles set out in Jayantilal N Mistry (supra) clearly apply, and based upon the same, the information could not have been denied to Mr Agarwal. 19. Mr Venugopal submitted that there was no issue of competitive secrets or personal information involved in this matter. He submitted that SEBI, as a regulator, appoints public interest directors to the boards of various stock exchanges. Such appointments ....
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.... provides that, subject to the provisions of this Act, all citizens shall have the right to information. Section 4 addresses the obligations of public authorities, and Section 5 concerns the designation of Public Information Officers. 27. Section 6 deals with requests for obtaining information. Section 6(2) provides that an applicant requesting information shall not be required to give any reason for requesting the information or any other personal details except those that may be necessary for contacting them. Section 7 addresses the disposal of requests for information. Section 7(8) requires the furnishing of the reasons where information is being rejected. Section 7(9) provides that information shall ordinarily be provided in the form in which it is sought unless it would disproportionately divert the resources of the public authority or would be detrimental to the safety or preservation of the record in question. 28. Section 8 is one of the most crucial provisions concerning the issues raised in this petition. This deals with the exemption from disclosure of information and shall be dealt with in greater detail during this judgment and order. Section 9 deals with the reje....
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.... Provided further that those matters which come under the exemptions specified in this section shall not be disclosed; (j) information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information: Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person. (2) Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. (3) Subject to the provisions of clauses (a), (c) and (i) of sub-section (1), any information relating to any occurrence, event or matter which has taken place, occurred or happened twenty yea....
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.... not to disclose the information or record or part thereof and give in writing the notice of his decision to the third party. (4) A notice given under sub-section (3) shall include a statement that the third party to whom the notice is given is entitled to prefer an appeal under section 19 against the decision." 32. The scheme of Sections 8 and 11 of the RTI Act was analyzed by the Constitution Bench of the Hon'ble Supreme Court in CPIO Vs Subhash Chandra Agarwal (Supra). The Court explained that the RTI Act operationalizes the disclosure of information held by "public authorities" to reduce the asymmetry of information between individual citizens and the State apparatus. The RTI Act facilitates transparency in the decisions of public authorities, holds public officials accountable for any misconduct or illegality, and empowers individuals to bring to light matters of public interest. The RTI Act has provided a powerful instrument to citizens and individuals engaged in advocacy and journalism. It fosters a culture of assertion among citizen-activists, whistle-blowers, and, above all, each citizen with a general interest in the affairs of the State. 33. The Constituti....
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....olute but is qualified and cannot be invoked where a "larger public interest" exists. Where the Information Officer determines that the "larger public interest" warrants a disclosure, the exemption in clause (d) cannot be invoked, and the information must be disclosed. 36. Similarly, the Constitution Bench, in the context of Clause (j) of Section 8(1) explained that it provides a qualified exemption from disclosure where the information sought relates to "personal information the disclosure of which has no relationship to any public activity or interest" or the disclosure of the information would cause an "unwarranted invasion of the privacy". However, the exemption may be overridden where the Information Officer is "satisfied that the larger public interest justifies the disclosure". Clause (j) is not an absolute exemption from the disclosure of information on the ground of privacy, but states that disclosure is exempted in cases where "personal information" is sought and there exists no "larger public interest". Where the Information Officer is satisfied that the existence of the "larger public interest" justifies the disclosure of the "personal information", the information m....
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....create a substantive system of checks and balances that seek to balance the right of the information applicant to receive information with the right of the third party to prevent the disclosure of personal information, permitting the latter to contest the proposed disclosure. 41. The contention that Section 11 applied only to situations where information sought was directly supplied by a third party, and not to situations where the information related to the third party but was not supplied by it, was rejected by the Constitution Bench. The Court held that the procedure under Section 11 must be complied with not only in cases where information has been supplied to the public authority by a third party, but also when the information held by the public authority "relates to" a third party. 42. Section 11 is not merely a procedural provision, but a substantive protection to third parties against the disclosure of their personal information held by public authorities, without their knowledge or consent. The mere fact that the public authority holds information relating to a third party does not render it freely disclosable under the RTI Act. A third party may have good reason to ....
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....y is absolute. The rights under Article 19(1)(a) may be restricted on the grounds enumerated in clause (2) of Article 19. The right to privacy and its numerous facets may be permissibly restricted where the abridgement is provided by law, pursues a legitimate State objective and complies with the principle of proportionality. 47. The Constitution Bench, by referring to Subhash Chandra Agarwal Vs Supreme Court of India 2018 11 SCC 634 (supra), in which Mr. Agarwal had sought for details of medical facilities availed by Judges and their family members in the preceding three years, the Court held that certain category of information such as medical information, details of personal relations, employee records, and professional income can be classified as personal information. The question of whether such information must be disclosed has to be determined by the CPIO on a case-to-case basis, depending on the public interest demonstrated in favour of disclosure. 48. The Constitution Bench also dealt with the aspect of "public interest" especially in the context of qualified exemptions for disclosure of information. For example, Section 8(1)(d) or (e) exempts disclosure of informati....
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....ing, correspondence, and other documents "on framing policy, guidelines etc." as referred to in query (1) above for SEBI having its role in appointing PIDs on the Boards of "MII, BSE, NSE, MCX and MCX Clearing Corporation Limited." Nevertheless, such information can be said to have been held in fiduciary capacity by the SEBI. Because this would include information supplied by candidates to be considered for appointment as PIDs in good faith and candour, trusting that confidentiality would be maintained. Therefore, we do not think that any case is made out to interfere with the impugned order to the extent it rejects information regarding query No. 2. 55. Query No.3 concerns "File-notings, correspondence and other documents on granting approval by SEBI to appoint PIDs on boards of MII, BSE, NSE, MCX and MCX Clearing Corporation Limited from 01.01.2019 till 15.06.2021" The SEBI invoked the exemption under Section 8(1)(j) of the RTI Act, on the ground that the documents about the grant of approval of PIDs constituted personal information of the Applicants. By the impugned order, the CIC has partially upheld SEBI's defence. However, the CPIO was directed to provide a list of selecte....
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....m an opportunity to oppose such disclosures, if they so choose. The provisions in Section 11, which are mandatory, cannot be avoided or bypassed in such situations. 59. In the case of CPIO V/s. Subhash Chandra Agarwal (supra), the Applicants had sought copies of correspondence exchanged between constitutional authorities, together with file-notings relating to the appointment of Supreme Court Judges, superseding the seniority of some High Court Judges. The Court held that such information falls within the meaning of "third party information" and the procedure under Section 11 must be complied with in arriving at a determination. Therefore, the matter was remanded to the CPIO to examine it afresh, following the procedure prescribed under Section 11 of the RTI Act. 60. Therefore, insofar as Query No.3 is concerned, we set aside the CIC's impugned order and remand the matter to the CPIO to consider Mr Agarwal's request afresh by following the provisions of Section 11. 61. Query Nos. 4 and 5 concern the annual inspection reports made by SEBI for a certain specified period. The impugned order, by applying the exemption under Section 8(1)(d) has not granted full inspection but o....